JUDGMENT
Fawcett, J.
1. In my opinion, the view taken by the two lower Courts that the previous darkhasts were not according to Jaw, within the meaning of Article 182 of the Indian Limitation Act, is correct, as Order XXI, Rule 16, clearly contemplates only the assignment of a decree ” that has been passed ” This is supported by reference to the terms of the old Section 208 of Act VIII of 1859, which is the precursor of the present rule; and that section clearly required that the assignment should be from the original decree-holder. That section is cited in Abidunnissa Khatoon v. Amirunnissa Khatoon (1876) I.L.R. 2 Cal. 327, 333, p.c.. This view is also in accordance with that taken by the Madras High Court in Bhandari v. Ramachandra (1907) 17 M.L.J. 391. There it is stated (p. 392):
There can be no doubt that when the assignment was made there was no decree in existence. The proper course for the appellant to have taken would have been to apply under Section 372 of the Code of Civil Procedure to be made a party to the suit. He did not do so, and the final decree in the suit having been given, it is now too late for him to come in under that section. We are asked to hold that in the event) which happened in this case the appellant is entitled to be treated as the transferee of a decree from a decree-holder for the purposes of Section 232, notwithstanding that at the time of the assignment there was no decree and no decree-holder. It seems to us that we should not be warranted in applying the doctrine of equity on which the appellant relies… for the purpose of construing Section 232 of the Code. We think the words ‘dearee-holder’ must be construed as meaning decree-holder in fact and not as including a party who in equity may afterwards become entitled to the rights of the actual decree-holder, and that the words of the section relating to a transfer of a decree cannot be construed so as to apply to a case where there was no decree in existence at the time of the agreement.
2. The general rule is that ordinarily it is only a decree-holder who can apply for execution; and in the circumstances the defect is, it seems to me, a fatal one: of Bando Krishna v. Narasimha (1912) I.L.R 37 Bom. 42, 49, s.c. 14 Bom L.R. 861. I do not think any of the arguments of Mr. Shingne against this view are sound.
3. We are further asked to follow the procedure which was adopted in Salekhan v. Viahvanath (1910) 13 Bom. L.R. 22. The appellant has taken a subsequent assignment, and asks us to say that that assignment should be taken to have cured the defeats that existed in the previous darkhasts. The Court in that case held that this could be done, following the principle which has been adopted in regard to the subsequent production of a succession certificate. No doubt, these are very hard cases; but I can see no alternative to saying that the necessity for an assignment prior to an application is one which the law, as embodied in Order XXI, Rule 16, requires as a condition precedent; and it does not seem to me that a defect of that kind is one that can be cured in this way, unless some very substantial grounds are shown for such a course. The cases with regard to the Succession Certificate Act, of which Balkiahan Shiwa Bakas v. Wagaraing (1894) I.L.R. 20 Bom. 76 is the main one, are really based upon the words “proceed upon” contained in Section 4 of that Act, and it is pointed out in the case just mentioned that those words are different from the word ” entertain” and so permit the proceeding being continued after the requisite certificate has been obtained. Also in the analogous case of the Pensions Act, the same course is really based upon the words of Section 6 of the Act, which allows a Court to take cognizance of the suit upon the production of a certificate : see the remarks of the Privy Council in Mahammad Azmat Ali Khan v. Lalli Begum (1881) I.L.R.8 Cal. 422, 431, p.c. There is no provision in the Code or elsewhere on which to base a similar procedure in cases of this kind. Therefore, although we are, to some extent, bound by the Division Bench ruling in Salekhan v. Vishvanth (1910) 13 Bom. L.R.22, I would not extend that precedent an inch beyond the particular case there under consideration. Govind Harjivan Shet v. Pandu bin Ganu (1885) P.J. 195 is there cited as an authority; but a reference to that case shows that the assignment was produced in a pending application for execution, and it was held that after the assignment had been produced that application could legally proceed. That is quite different to saying that an application for execution that has already been disposed of can be treated as cured by the subsequent production of a deed of assignment. Salekhan v. Vishvanath (1910) 13 Bom. L.R. 22 extended the principle of Govind Harjivan Shet v. Pandu bin Ganu (1885) P.J. 195 and we are asked still further to extend it to a case which is not one of a joint Hindu family, such as was under consideration in both the previous cases. I have referred to the judgment of Mr, Justice West in Hari v. Narayan (1887) I.L.R. 12 Bom. 427, which is mentioned in Mr. Justice Batchelor’s judgment in Salekhan v. Vishvanath (1910) 13 Bom. L.R. 22,26 as also. The General Manager of the Raj Durbhunga v. Maharajah Coomar Ramaput Singh (1872) 14 M.I.A. 605 which is cited in Mr. Justice West’s judgment; but those judgments only amount to saying that a suit, or the execution proceedings thereon, should not be upset merely on account of some irregularity which is not vital. In the present case the defect is vital, and I do not think we would be justified in treating it as curable in the manner suggested.
4. Therefore, in my opinion, the appeal fails and should be dismissed with costs.
Madgavkar, J.
1. During the pendency of suit No. 773 of 1913, the appellant, on February 18, 1914, obtained an assignment from the plaintiff of his rights in suit, but never applied to the Court. The decree in suit was passed in favour of the plaintiff in November 1914, and the appeal was decided on January 27, 1916.
2. Without applying to the Court, the appellant filed various darkhasts in 1916, 1917, 1920 and 1921, all of which were dismissed. Finally, on November 5, 1923, he obtained a fresh assignment from the plaintiff decree-holder.
3. The question in the present appeal is, whether the darkhast given after this last assignment is in time. The trial Court held it was, and the appellate Court held that it was not.
4. In the case of an assignment pending suit, it was the duty of the appellant, under Order XXII, Rule 10, to apply to the Court during the pendency of the suit. Such an application must be made before and not after the decree: Sitaramaswami v. Lakshmi Narasimha (1917) I.L.R. 41 Mad. 510. An assignee of and after the decree must apply under Order XXI, Rule 16. It follows that none of the darkhasts prior to 1923 was in accordance with law. Both under Order XXII, Rule 10, and Order XXI, Rule 16, the right of the appellant to be substituted is a right which is in the discretion of the Court.
5. The lower appellate Court was, therefore, right in holding that the present darkhast was barred by limitation. The appeal must be dismissed with costs.
